Darryl Keith Aggers v. TYSON, Kern Valley State Prison, Captain;

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DARRYL KEITH AGGERS,
Plaintiff - Appellant,
v.
TYSON, Kern Valley State Prison,
Captain; et al.,
Defendants - Appellees.
No. 11-17138
D.C. No. 1:07-cv-01701-AWI-JLT
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, Chief Judge, Presiding
Submitted September 10, 2012**
Before: WARDLAW, CLIFTON, and N.R. SMITH, Circuit Judges.
Darryl Keith Aggers, a California state prisoner, appeals pro se from the
district court’s judgment dismissing his 42 U.S.C. § 1983 action for failure to
exhaust administrative remedies under the Prison Litigation Reform Act, 42 U.S.C.
FILED
SEP 25 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

-- 1 of 2 --

11-17138 2
§ 1997e(a). We have jurisdiction under 28 U.S.C. § 1291. We review de novo,
Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir. 2003), and we affirm.
The district court properly dismissed the action without prejudice because
Aggers conceded that he did not exhaust administrative remedies, and failed to
provide sufficient evidence to show that administrative remedies were effectively
unavailable to him. See Woodford v. Ngo, 548 U.S. 81, 85, 93-95 (2006) (“proper
exhaustion” is mandatory and requires adherence to administrative procedural
rules); see also Sapp v. Kimbrell, 623 F.3d 813, 822 (9th Cir. 2010) (exhaustion is
not required where administrative remedies are “effectively unavailable”).
We do not consider arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam).
AFFIRMED.

-- 2 of 2 --